Alternative Safe Working Arrangements Under MO32

Nathan Cecil, Partner

AMSA's new policy on alternative safe working arrangements may provide some relief to owners/operators caught by the strict operation of MO32.

Australia has developed a notorious international reputation on the issue of vessel presentation. Australian Port State Control inspections and ‘Australian hold ladders' are a common topic of conversation when dealing with foreign ship operators trading to Australia. Australia has implemented a set of Marine Orders which dictate almost all aspects of vessel presentation and operation at Australian ports.

Marine Order 32 (cargo handling equipment) ("MO32") is aimed at "the protection of the health and security from injury of persons engaged in loading or unloading ships, offshore industry vessels and offshore mobile units". MO32 applies to the loading or unloading of any ship at a port in Australia and any Australian offshore industry vessel or unit. Under MO32, a person, typically the stevedore shift manager, is put in charge of all aspects of loading or unloading a ship. The role of the person in charge is to direct cargo operations to ensure that they are carried out in a safe and orderly manner. It is an offence for any person to load or unload a ship otherwise than under the direction of the person in charge.

MO32 is a detailed, prescriptive instrument, dictating the characteristics, condition and conduct of all ships and cargo operations within Australian ports. Many of the provisions of MO32 are fixed, finite and strictly applied - e.g. container bay stack spaces (excluding lashings in place) are to be no less than 550mm wide (to be increased to 750mm for all ships constructed after 1 January 2015). If these prescriptive, fixed provisions are not met, a ship is non-compliant and AMSA will suspend all work in the non-compliant area. Apart from seeking a formal exemption from compliance under MO32 (which AMSA rarely grants and only in exceptional circumstances), there is no way around such non-compliance.

Other provisions of MO32 aren't as prescriptive and are more descriptive - e.g. sufficient space between the fixing points of lashing bars on deck to tighten the turnbuckles. What is sufficient will depend on the characteristics of the ship, type of lashing equipment being used and work method. If the person in charge is not satisfied, AMSA can be called and asked to issue an order that the proposed arrangement is unsafe. Presently, where such an order is issued, all work stops, for good. Some operators have adopted the practice of using ship's labour to conduct any non-compliant operations, but this is effectively prohibited under the Navigation Act and is a practice that should only be undertaken upon legal advice.

In the past, this has caused immense grief to ship operators, in particular where there might be an equally safe alternative working arrangement available, albeit not strictly in compliance with MO32. As the Australian shipping industry and relationships between the key stakeholders has matured, all parties are beginning to see that unworked ships are not good news for anyone - operator, terminal or stevedore.

As a result of industry consultation, AMSA has issued a new note on alternative safe working arrangements under MO32. The new note provides that, where a ship does not fully comply with MO32, the key stakeholders can (and should) conduct and document a risk assessment in relation to proposed alternative working arrangements. Provided that the risk assessment is in accordance with relevant work health and safety laws and all parties (operator, terminal and stevedore) agree to the alternative working arrangement, a copy of the risk assessment can be presented to AMSA (business hours only) for consideration and acceptance under MO32. AMSA stresses that, if there is not unanimous agreement between all stakeholders, it will not act as referee and non-compliance will simply mean no working the vessel. AMSA also stresses that this mechanism is not intended to be used as a de facto exemption regime. It is intended as a one-off, for unexpected non-compliance and all ships are expected to be MO32 compliant on their next Australian voyage.

An alternative working arrangement risk assessment cannot remedy the unremediable - if container stacks are required to be 550mm apart and are less, no alternative working arrangement can fix this. However, for the more descriptive requirements of MO32, AMSA's new note provides a very valuable mechanism for the key stakeholders to work around any non-compliance issues whilst still ensuring the safety of all concerned.

Charterers frequently try and address Australian law compliance with a general warranty in charterparties. In our view, this is not sufficient. A warranty and indemnity should be sought in respect of MO32 in particular, including any formal non-compliance and any unsafe working arrangements, as assessed by the person in charge and ordered by AMSA.

The new policy has been widely used in WA and initial industry feedback has been very positive. Hopefully all stakeholders throughout the rest of Australia are similarly committed to working together for the benefit of Australian shipping as a whole.

This article was originally published in Lloyd's List Australia on 8 August 2013.

Contact:

Nathan Cecil

Partner

E: nathan.cecil@nortonwhite.com

T: +61 2 9230 9450

Robert Wilson

Partner

E: robert.wilson@nortonwhite.com

T: +61 2 9230 9475

Claire Morgan

Foreign Registered Solicitor